Magistrate must mandatorily conduct inquiry under Section 202 Cr.P.C. before issuing summons if accused resides outside its jurisdiction, even in cheque dishonour cases; non-compliance vitiates process.

JUDGMENT :

Alok Mahra, J.

The present applications under Section 482 Cr.P.C., being C-482 No. 861 of 2024 and C-482 No. 1099 of 2024, have been filed seeking quashing of the order dated 21.11.2023 passed by the learned 1st Additional Civil Judge/Judicial Magistrate, Dehradun in Complaint Case No. 7292 of 2023 and Complaint Case No. 7291 of 2023, respectively, under Section 138 of the Negotiable Instruments Act, 1881. Further, C-482 No. 920 of 2024 and C-482 No. 930 of 2024 have been filed seeking quashing of the orders dated 25.11.2023 and 29.11.2023, respectively, passed by the learned 1st Additional Civil Judge/Judicial Magistrate, Dehradun in Complaint Case No. 7355 of 2023 and Complaint Case No. 7409 of 2023, under of the Negotiable Instruments Act, 1881, along with the entire criminal proceedings of the aforesaid cases.

2. Since a common question of law and fact is involved in all the four applications, relating to dishonour of cheques arising out of the same transaction between the same parties, the matters are being decided together by this common judgment. However, for the sake of brevity, the facts of C-482 No. 861 of 2024 are being taken into consideration.

3. Briefly stated, the facts of the case are that the applicant no.1 and respondent no.2 were both serving in the Border Security Force (BSF) and are stated to be close friends. It is alleged that the applicant had taken a friendly loan of Rs.24,50,000/- from respondent no.2 with the assurance that the same would be returned along with profit amounting to Rs.36,00,000/-. In order to secure the said amount, the applicant allegedly issued four cheques of Rs.9,00,000/- each, totalling Rs.36,00,000/, in favour of respondent no.2.

4. It is further alleged that when the applicant failed to repay the said amount, respondent no.2 presented the cheques before the concerned bank for encashment; however, the same were dishonoured with the remark “Exceeds Arrangement.” Thereafter, respondent no.2 issued legal notices under Section 138 of the Negotiable Instruments Act and subsequently instituted complaint cases before the court concerned. The learned Magistrate, after considering the complaint and the affidavit filed under Section 200 Cr.P.C., took cognizance vide order dated 21.11.2023 and issued summons to the applicants.

5. Learned counsel for the applicants would submit that the amount was received by the applicant from respondent no.2 for the purpose of investment in a land purchase transaction and that the cheques in question were issued merely as security cheques. It is further submitted that the applicant has already repaid the entire amount along with profit to respondent no.2 and the dispute had already been settled between the parties. However, despite such settlement, respondent no.2 has misused the cheques and filed the present false complaints.

6. It is further contended that the learned Magistrate has taken cognizance on the basis of the affidavit filed under Section 200 Cr.P.C., but while issuing the summoning order the court below has failed to comply with the mandatory provisions of Section 202 Cr.P.C. It is submitted that since the applicants are residents of Haridwar, which is beyond the territorial jurisdiction of the court at Dehradun, the learned Magistrate ought to have conducted an inquiry or directed investigation under Cr.P.C. prior to issuance of process.

7. Per contra, learned senior counsel appearing for respondent no.2/complainant has vehemently opposed the submissions advanced on behalf of the applicants and submitted that respon